Tammy (Briggs) Berry v. Randy F. Briggs

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ca00-442

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOHN F. STROUD, JR.

DIVISION IV

TAMMY (BRIGGS) BERRY

APPELLANT/CROSS-APPELLEE

V.

RANDY F. BRIGGS

APPELLEE/CROSS-APPELLANT

CA 00-442

December 20, 2000

APPEAL FROM THE ARKANSAS

COUNTY CHANCERY COURT,

SOUTHERN DIVISION [E-94-6]

HONORABLE LAWRENCE E.

DAWSON, CHANCERY JUDGE

REMANDED ON APPEAL AND

CROSS-APPEAL

    Tammy Briggs Berry files this appeal from a January 5, 2000, order of the Chancery Court of Arkansas County that reduced the child-support obligation of Randy F. Briggs, who is her ex-husband and whose source of income is a farming partnership. A 1994 divorce decree awarded the parents joint custody of their daughter, awarded primary physical custody of the child to Berry, and ordered Briggs to pay child support in the amount of $1000 a month. In September 1995 Berry filed a motion for an increase in child support on the basis of a substantial increase in Briggs's income after the divorce decree was entered; she asked for a modification commensurate with his income according to the Arkansas Child Support Chart. The subsequent agreed order, entered in September of 1996, reflected in part that the

parties had advised the court that all issues raised had been settled, and it increased Briggs's child-support obligation to $1700 a month. Briggs's 1999 motion asked that the amount of child support be reduced because of a decrease in his income from the time of the 1996 order. The chancellor conducted a hearing on the motion, found that there had been a change in circumstances, and reduced the child-support obligation to $1400 a month. That judgment gave rise to this appeal.

    In her sole point of appeal, Berry contends that the chancellor's finding of a change in circumstances justifying the reduction in child support is against both the preponderance of the evidence and Administrative Order No. 10 - Arkansas Child Support Guidelines. Briggs cross-appeals, contending that the chancellor's failure to reduce the child support further is against the preponderance of the evidence. We remand on both points.

    Determination of the amount of child support is controlled by both Administrative Order No. 10 and by statute. Arkansas Code Ann. § 9-12-312 (Supp. 1999) includes the following pertinent parts:

      (a)(1) When a decree [regarding alimony or child support] is entered, the court shall make such orders concerning . . . the care of the children, if there are any, as are reasonable from the circumstances of the parties and the nature of the case.

      . . . .

      (2) In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on therecord that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.

    Administrative Order No. 10 includes and incorporates by reference a family-support chart promulgated by the supreme court, and Section I of the order sets forth the rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the chart is the amount to be awarded. Reference to the chart is required, and the rebuttable presumption that the chart established the appropriate amount can be modified only on the basis of written findings stating why the chart amount is unjust or inappropriate. Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000). The amount of a child-support award lies within the sound discretion of the chancellor and will not be disturbed on appeal absent an abuse of discretion. Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999); see Ark. Code Ann. § 19-14-106(a)(1)(A) (Repl. 1998).

    Currently, the most recent revision of the child-support chart is found at In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. 581 (1998). Section I of the order addresses the rebuttable presumption regarding the amount of child support calculated according to the chart:

      The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support.

      It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a specific written finding within the Order that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate. Findings that rebut the guidelines shall state the payor's income, recite the amount of support required under the guidelines, recite whether or not the Court deviated from the Family Support Chart and include a justification of why the order varies from the guidelines as may be permitted under SECTION V . . . .

Id. at 582.

    In the present case, the chancellor ruled as follows from the bench:

      [T]here apparently were other factors besides the family support chart that the parties considered back there in 1996. So the Court cannot say that as a precedent, they used exclusively the family support chart then, and so the Court sees no reason to use exclusively the family support chart now, even if the Court knew precisely to the nickel what his current income is. He has told the court that he has collected all of the income for 1999 that he is going to collect, except for . . . these two items where there may be some additional, and except for that $75,000.00 that's being held.1 It would be interesting to know how much of that is going to be spent, the Court not being a farmer has no way of knowing how much of that, except these three brothers appear to have, I'd call it, a rather large operation going from the evidence that I have heard. So based on all the factors, the Court grants the petition and reduces the support from $1,700.00 a month to $1,400.00 a month beginning January 10, 2000 . . . . Either party has a right to file a new petition once the 1999 return has come in . . . .

    The written order reflects that the chancellor considered his court file, testimony of the parties and witnesses at the hearing, and the evidence offered at the hearing. The order stated that the reduction of child support to $1400 a month was based upon changed circumstances since the time of the last order and based on Briggs's income in 1996, 1997, and 1998. Although chancery cases are reviewed de novo on appeal, we will not reverse a chancellor's findings of fact unless they are clearly erroneous, and we will defer to the superior position of the chancellor to judge the credibility of witnesses. Hoover v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000).

    At the December 1999 hearing Briggs testified that the September 1996 order setting child support at $1700 a month was the result of a settlement between Berry and himself, and that he had agreed to the amount because "the farming situation was looking real good, the prices were up good, and we had an extremely good-looking crop." He stated that in September 1996 his last available income tax return was for 1995, reflecting a taxable income of $69,121; and that his best income ever was in 1996, when tax returns reflected an income of $517,496. He testified that by September 1996 he had been able to tell that the year would be good, that he agreed to the $1700 at that time because of what he thought his income would be for the year, and that he would never have agreed to the amount had he thought his income would be like that of 1995.

    Briggs testified that as a farmer since the 1970s, "if you have good prices you can tell by September if its going to be a good crop." He said that in 1998 the crop was fair but the prices were bad, and that the reduction from his record high income in 1996 to his 1998 income was more than $360,000. He said that it had been over twenty years since there had been a year worse than 1999, that the 1999 crop was fair but the prices were "way down," that "we did not have as big a draw as we did in other years," and that the 1999 prices were much worse at the time of the hearing. He said that he had received $70,000 from the farming operation for 1999, but that no quarterly estimates of income had been filed for 1999. A brother of Briggs's, Jesse, testified that the farming partnership was made up of three brothers. He stated that they did not make much money on the current year's crop because of "below-average price and a big expense and a lot of irrigation." He also testified that an experienced farmer knows by September what kind of year it will be.

    Berry argues that there has been no decrease in Briggs's income and thus no change in circumstances to justify a decrease in his child-support obligation. She notes that Briggs's income-tax return for 1998 reflected "child-support income" of $94,428, which was an increase of $30,000 over his 1995 return. She points to the wording of the 1996 order that the increased award of $1700 was based in part upon Briggs's "current earnings." She contends that the basis of Briggs's agreement to pay more child support was not based on an anticipated increase in income, but actually "must have been based on his 1995 income because there was no way for him to know with any degree of certainty what his 1996 income would be." She contends that, according to the support chart and Briggs's 1996 tax returns, the support amount set at $1700 in 1996 actually should have been $3400. We find no merit to Berry's argument because the higher amount of support suggested by her is based on an amount of income not known at the time of the 1996 hearing and because the 1996 order was entered upon the request of both parties as an agreed settlement regarding child support. Berry could have gone to court to seek an increase in child support once the 1996 tax returns became available, just as the chancellor pointed out that she could do following availability of the 1999 returns.

Berry concludes that there has been no decrease in Briggs's income when child support is calculated on the guidelines of the Family Support Chart. Briggs's 1999 petition to reduce child support alleged that his income had decreased since the entry of the September 1996 order. At the hearing on his petition in December 1999, Briggs's tax returns from 1996 to 1998 were introduced into evidence. Those returns as abstracted show each year's adjusted gross income and "total tax." Subtracting the tax from the adjusted gross income leaves a remaining income of $310,378 in 1996; of $218,401 in 1997; and of $117, 611 in 1998. Briggs testified that no quarterly reports had been filed for the year 1999 and that his income for 1999 at the time of the December hearing was $70,000.2 From this evidence, we cannot find that the chancellor clearly erred in finding changed circumstances that justified a reduction in the amount of child support.

    We agree with Berry, however, that the chancellor, in deviating from the support chart, was required to make specific written findings under Section I of Administrative Order No. 10. The fact that the parties did not use the chart in arriving at their agreed modification in 1996 did not excuse the chancellor from referring to the chart when the ordered amount was challenged in 1999. Because the chancellor did not follow the requirements of Section I, we remand for him to do so and either follow the chart based upon the evidence at the 1999 hearing or set out in writing in his order why the chart amount was not appropriate.

            Cross-Appeal

    On cross-appeal Briggs contends that although the chancellor was correct in finding that he was entitled to a reduction in his child-support obligation, the chancellor erred in reducing the amount to $1400 a month rather than $1180. He sets forth his computation of this figure and requests that we enter the correct amount under our de novo review. We think, however, that such calculations are better left to the trial court, especially in light of our remand on direct appeal for the chancellor to follow the chart or set forth his reasons for deviating from it.

    Remanded on appeal and cross-appeal.

    Jennings and Bird, JJ., agree.

1 There was testimony that in addition to the $70,000 distributed to each partner in 1999, a total of $75,000 was being held in the three operating farm partnerships.

2 Under Section I of Administrative Order No. 10 calculations for self-employed payors are to be based on last year's tax returns and quarterly estimates for the current year. We note that there were no quarterly estimates filed by Briggs in 1996.